Januart 4, 2013
ORDINANCE NO 668, SECOND SERIES
ORDINANCE AMENDING CHAPTER 70 OF THE CODE OF ORDINANCES FOR THE CITY OF MARSHALL AMENDING ARTICLE II. LODGING TAX
Section 1. The Common Council of the City of Marshall does ordain as follows:
Article II. Lodging Tax
Sec. 70-21. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Director means the director of finance of the city.
Lodger means the person obtaining lodging from an operator.
Lodging means the furnishing for a consideration of lodging by a hotel, motel, dormitory or roominghouse except where such lodging shall be for a continuous period of 30 days or more to the same lodger. The furnishing of rooms by religious organizations shall not constitute lodging for purposes of this article.
Motel means a roadside hotel for motorists.
Operator means a person who provides lodging to others or any officer, agent or employee of such person.
Rent means the total consideration valued in money charged for lodging whether paid in money or otherwise, but shall not include any charges for services rendered in connection with furnishing lodging other than the room charge itself.
Sec. 70-22. Imposition.
There is hereby imposed a tax of four and one-half percent on the rent charged by an operator for providing lodging to any person. The tax shall be stated and charged separately and shall be collected by the operator from the lodger. The tax collected by the operator shall be a debt owed by the operator to the city and shall be extinguished only by payment to the city. In no case shall the tax imposed by this article upon an operator exceed the amount of tax, which the operator is authorized and required by this article to collect from a lodger.
Cross reference. Laws of Minnesota 2010 Chapter 389, Article 5, Section 6, as amended, authorized the City to impose a one and one-half percent tax on lodging related services provided within a guest room on hotels, motels and other lodging facilities in the City to assist in funding the new and existing facilities of the Minnesota Emergency Response and Industry Training Center and the new and existing facilities of the Southwest Minnesota Regional Amateur Sports Center. The City approved the Act in accordance with applicable law. This tax is in addition to all other lodging taxes imposed by the City pursuant to Minn. Stat. 469.190. This portion of the lodging shall take effect June 1, 2013.
Sec. 70-23. Exceptions and exemptions.
(a)No tax shall be imposed on rent paid by a lodger at any motel where 50 percent or more of the rent received from all lodgers is for lodging furnished for a continuous period of 30 days or more to the same lodgers.
(b)No tax shall be imposed on rent for lodging paid by any officer or employee of a foreign government who is exempt by reason of express provisions of federal law or international treaty.
(c)An exemption shall be granted to any person as to whom or whose occupancy it is beyond the power of the city to tax. No exemption shall be granted except upon a claim therefor made at the time the rent is collected and such a claim shall be made in writing and under penalty of perjury on forms provided by the city. All such claims shall be forwarded to the city when the returns and collections are submitted as required by this article.
Sec. 70-24. Advertising no tax.
It shall be unlawful for any operator to advertise or hold out or state to the public or any customer, directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the operator, or that it will not be added to the rent or that, if added, it or any part thereof will be refunded. In computing the tax to be collected, amounts of tax less than $0.01 shall be considered an additional $0.01.
Sec. 70-25. Collections.
Each operator shall collect the tax imposed by this article at the time the rent is paid. The tax collection shall be deemed to be held in trust by the operator for the city. The amount of tax shall be separately stated from the rent charged for the lodging, and those persons paying the tax shall receive a receipt of payment from the operator.
Sec. 70-26. Payment and returns.
The taxes imposed by this article shall be paid by the operator to the city monthly not later than 25 days after the end of the month in which the taxes were collected. At the time of payment, the operator shall submit a return upon such forms and containing such information as the director may require. The return shall contain the following minimum information:
(1)The total amount of rent collected for lodging during the period covered by the return.
(2)The amount of tax required to be collected and due for the period.
(3)The signature of the person filing the return or that of an agent duly authorized in writing.
(4)The period covered by the return.
(5)The amount of uncollectible rent charged subject to the lodging tax.
The operator may offset against the taxes payable with respect to any reporting period, the amount of taxes imposed by this article previously paid as a result of any transaction, the consideration for which became uncollectible during such reporting period, but only in proportion to the portion of such consideration, which became uncollectible.
Sec. 70-27. Examination of return, adjustments, notices and demands.
The director shall, after a return is filed, examine the return and make any investigation or examination of the records and accounts of the person making the return deemed necessary for determining its correctness. The tax computed on the basis for such examination shall be the tax to be paid. If the tax due is found to be greater than that paid, such excess shall be paid to the city within ten days after receipt of a notice thereof given either personally or sent by registered mail to the address shown on the return. If the tax paid is greater than the tax found to be due, the excess shall be refunded to the person who paid the tax to the city within ten days after determination of such refund.
Sec. 70-28. Refunds.
Any person may apply to the director for a refund of taxes paid for a prescribed period in excess of the amount legally due for that period, provided that no application for refund shall be considered unless filed within one year after such tax was paid or within one year from the filing of the return, whichever period is the longer. The director shall examine the claim and make and file written findings thereon denying or allowing the claim in whole or part and shall mail a notice thereof by registered mail to such person at the address stated upon the return. If such claim is allowed in whole or in part, the director shall credit the amount of the allowance against any taxes due under this article from the claimant and the balance of such allowance, if any, shall be paid by the director to the claimant.
Sec. 70-29. Failure to file a return.
(a)If any operator required by this article to file a return shall fail to do so within the time prescribed, or shall make, willfully or otherwise, an incorrect, false or fraudulent return, the operator shall, upon written notice and demand, file such return or corrected return within five days of receipt of such written notice and shall at the same time pay any tax due on the basis of such return. If such person shall fail to file such return or corrected return, the director shall make a return or corrected return for such person from such knowledge and information as the director can obtain and assess a tax on the basis thereof, which tax (less any payments theretofore made on account of the tax for the taxable period covered by such return) shall be paid within five days of the receipt of written notice and demand for such payment. Any such return or assessment made by the director shall be prima facie correct and valid, and such person shall have the burden of establishing its incorrectness or invalidity in any action or proceeding in respect thereto.
(b)If any portion of a tax imposed by this article, including penalties thereon, is not paid within 30 days after it is required to be paid, the city attorney may institute such legal action as may be necessary to recover the amount due, plus interest, penalties and the costs and disbursements of any action.
(c)Upon a showing of good cause, the director may grant an operator one 30-day extension of time within which to file a return and made payment of taxes, as required by this article, provided that interest during such period of extension shall be added to the taxes due at the rate of ten percent per annum.
Sec. 70-30. Penalties for violation of article.
(a)If any tax imposed by this article is not paid within the time specified in this article for the payment, or an extension of the payment, there shall be added thereto a specific penalty equal to ten percent of the amount remaining unpaid.
(b)In case of any failure to make and file a return within the time prescribed by this article, unless it is shown that such failure is not due to willful neglect, there shall be added to the tax, in addition to the ten percent specific penalty provided in section 70-30 (a), ten percent if the failure is for not more than 30 days with an additional five percent for each additional 30 days or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate. If the penalty, as computed, does not exceed $10.00, a minimum penalty of $10.00 shall be assessed. The amount so added to any tax shall be collected at the same time and in the same manner and as a part of the tax unless the tax has been paid before the discovery of the negligence, in which case the amount so added shall be collected in the same manner as the tax.
(c)If any person willfully fails to file any return or make any payment required by this article, or willfully files a false or fraudulent return or willfully attempts, in any manner, to evade or defeat any such a tax or payment thereof, there shall also be imposed as a penalty an amount equal to 50 percent of any tax (less any amounts paid on the basis of such false or fraudulent return) found due for the period to which such return related. The penalty imposed by this section shall be collected as part of the tax, and shall be in addition to any other penalties provided by this article.
(d)All payments received shall be credited first to penalties, next to interest, and then to the tax due.
(e)The amount of tax not timely paid, together with any penalty provided by this section, shall bear interest at the rate of eight percent per annum from the time such tax should have been paid until paid. Any interest and penalty shall be added to the tax and be collected as part of such tax.
Sec. 70-31. Administration of tax.
The director shall administer and enforce the assessment and collection of the taxes imposed by this article. The director shall cause to be prepared blank forms for the returns and other documents required by this article and shall distribute the same throughout the city and furnish them on application but failure to receive or secure them shall not relieve any person from any obligation required of him under this article.
Sec. 70-32. Examine records.
The director and those persons acting on behalf of the director authorized in writing by the director may examine the books, papers and records of any operator in order to verify the accuracy of any return made, or if no return was made, to ascertain the tax as provided in this article. Every such operator is directed and required to give to the director or to this duly authorized agent or employee the means, facilities and opportunity for such examinations and investigations as are hereby authorized.
Sec. 70-33. Violations.
Any person who shall willfully fail to make a return required by this article, or who shall fail to pay the tax after written demand for payment, or who shall fail to remit the taxes collected or any penalty or interest imposed by this article after written demand for such payment or who shall refuse to permit the director or any duly authorized agents or employees to examine the books, records and papers under his control, or who shall willfully make any incomplete, false or fraudulent return shall be guilty of a misdemeanor.
Sec. 70-34. Appeals.
(a)Any operator aggrieved by any notice, order or determination made by the director under this article may file a petition for review of such notice, order or determination detailing the operator's reasons for contesting the notice, order or determination. The petition shall contain the name of the petitioner, the petitioner's address and the location of the lodging subject to the order, notice or determination.
(b)The petition for review shall be filed with the city clerk/finance director within ten days after the notice, order or determination for which review is sought has been mailed or served upon the person requesting the review.
(c)Upon receipt of the petition, the city administrator, or his designee, shall set a date for a hearing and give the petitioner at least five days prior written notice of the date, time and place of the hearing.
(d)At the hearing, the petitioner shall be given an opportunity to show cause why the notice, order or determination should be modified or withdrawn. The petitioner's may be represented by counsel of petitioner's choosing at petitioner's own expense.
(e)The hearing shall be conducted by the city administrator, or his designee, provided only that the person conducting the hearing shall not have participated in the drafting of the order, notice or determination for which review is sought.
(f)The person conducting the hearing shall make written findings of fact and conclusions based upon the applicable section of this article and the evidence presented. The person conducting the hearing may affirm, reverse or modify the notice, order or determination made by the director.
(g)Any decision rendered by the city administrator pursuant to this section may be appealed to the city council. A petitioner seeking to appeal a decision must file a written notice of appeal with the city clerk/finance director within ten days after the decision has been mailed to the petitioner. The matter will thereupon be placed on the council agenda as soon as is practical. The council shall then review the findings of fact and conclusions to determine whether they were correct. Upon a determination by the council that findings and conclusions were incorrect, the council may modify or reverse the decision of the city administrator, or his designee, upon the same standards as set forth in subsection (f) of this section.
Section 2. This Ordinance shall take effect from and after the adoption and publication.
THE COMMON COUNCIL
Robert J. Byrnes
Mayor of the City of Marshall, MN
Thomas M. Meulebroeck
Finance Director/City Clerk
Introduced on: December 4, 2012
Final Passage on: December 18, 2012
Published on: January 4, 2013
For any questions on this Ordinance please contact Ben Martig, City Administrator for the City of Marshall at 507-537-6760.